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Saturday, June 25, 2016

GateHouse: Supreme Court further narrows Fourth Amendment protections

Matthew T. Mangino

GateHouse Media

June 24, 2016

This week, the U.S. Supreme Court ruled that the
exclusionary rule does not apply when an officer makes an illegal stop and
finds out the “suspect” has a warrant for his arrest and searches the suspect
as a result.

The rationale behind the exclusionary rule was to deter police misconduct. If
the police intentionally circumvented their obligation to get a search warrant,
made an illegal stop or if the police were just inept, the penalty would be
significant — the inability to use the evidence illegally obtained.

The court’s decision this week in Utah v. Strieff seems to fly in the face of
the landmark holding in Mapp v. Ohio. Mapp originated out of Cleveland, where
police were looking for a fugitive and forced their way into Dollree Mapp’s
apartment without her consent. While in the apartment the police confiscated
illegal material and arrested Mapp.

Forty-seven years before the 1961 decision in Mapp, the U.S. Supreme Court
ruled that evidence collected in federal prosecutions that violated the Fourth
Amendment ban against illegal search and seizures would be excluded from trial.
The exclusionary rule, as it became known, was available to all defendants in
federal court. However, the rule had not been recognized or applied by all
states. Ohio was one of those states that did not recognize the exclusionary
rule.

Mapp v. Ohio changed the nation’s jurisprudential landscape. Mapp explicitly
held that the exclusionary rule applies to the states and as a result state
prosecutors could not use evidence gained by illegal or improper means to
obtain a conviction.

Many Supreme Court observers suggested that the Mapp decision would be
detrimental to law enforcement. The courts would be inundated with challenges
and the guilty would go free in droves. The exclusionary rule has been the
target of a 50-year assault by conservatives who contend the rule is a
boondoggle for criminals.

What the exclusionary rule actually produced was improved police work. The law
enforcement training that grew out of the Mapp decision has enhanced the
quality of police investigations and protected the rights of individual
citizens. In 2005, the late Justice Antonin Scalia cited “increasing
professionalism of police” as a reason for the exclusionary rule’s
obsolescence.

The court has chipped away at the exclusionary rule. In 2009, The Supreme Court
found that evidence confiscated as the result of an arrest that was the product
of an expired warrant was not subject to exclusion. The Court found that
negligence by one police department in failing to remove a warrant did not
contaminate evidence obtained by a different police department that was unaware
the arrest warrant was invalid.

In 2011, the Supreme Court further narrowed the exclusionary rule. Police in
Alabama arrested Willie Davis. After he was handcuffed and placed in the
backseat of a police cruiser Davis’ car was searched. The police found a gun.
The police were in conformity with the law as it existed at the time the
warrantless search of Davis’ car was conducted.

Subsequently, the law changed and Davis sought to have the evidence excluded.
The Supreme Court refused to exclude the evidence. Justice Samuel Alito
concluded that suppression of evidence as the result of a change in the law, a
change that came after a lawful search, “would do nothing to deter police
misconduct.”

Now comes Strieff. Orrin Kerr of George Washington University Law School wrote
in the Washington Post, “Strieff is a significant win for the police.” He
suggests that “the majority’s approach practically invites police officers to
make illegal stops.”

This decision will have significant impact. According to the USA Today, the
Justice Department found during its investigation of police misconduct in
Ferguson, Missouri, that 16,000 of the city’s 21,000 residents had outstanding
warrants. Cincinnati recently had more than 100,000 warrants pending and New
York City has 1.2 million outstanding warrants.

— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George
P.C. His book, “The Executioner’s Toll, 2010,” was recently released by
McFarland Publishing. You can reach him at mattmangino.com and follow him on
Twitter at @MatthewTMangino.

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.